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The popular phrase ‘the law applies to everyone equally’ is not always true.

In fact, diplomats in foreign countries often get away with committing offences, and local governments are powerless to stop them – thanks to ‘diplomatic immunity’ which prohibits the prosecution of diplomats for criminal offences, many of which would ordinarily land an offender in hot water.

Australian Federal Attorney-General George Brandis has said that in the year ending in September, foreign diplomats based in Canberra have been detected for hundreds of offences, and not just speeding and minor traffic infringements, but more serious offences like high range drink driving, failing to comply with breath tests and even police pursuits.

Get Out of Gaol Free

One foreign official was caught driving at 135km/h at 2am, triggering a high speed police chase when he failed to pull over. After eventually stopping, the man failed to produce a driver licence of any description and blamed the incident on forgetting to take his antibiotics. A driver would ordinarily be charged with ‘police pursuit’ – or ‘Skye’s law’ – a serious offence which can lead to full time imprisonment. However, he could not be charged due to his status as a diplomat.

Other examples include a diplomat who drove with a high range blood alcohol concentration of 0.15, and a Mexican Embassy staffer who refused to comply with a breath test, telling police:

“I don’t want to, so I don’t have to. I’m here with my family … I’ll complain If I hear anything about this”.

In another case, a Saudi Arabian diplomat was caught speeding through an intersection at 107km/h in an 80km/h zone. He refused to stop for police sparking a chase, which police ultimately discontinued due to safety concerns. Again, he could not be charged.

The section essentially protects diplomatic agents from being criminally prosecuted in foreign states. That immunity extends to family members, servants, administrative and technical staff.

The section is intended to promote relations between nations, but has in some cases had the opposite effect. Importantly, the immunity is not absolute as it can be waived by the diplomat’s home country.

Waiving Immunity

A waiver of diplomatic immunity normally occurs when the government of the country where the alleged offence took place asks the diplomat’s country of origin to waive immunity, and the latter agrees.

Cases of waiver are relatively rare. In the United States, a former Republic of Georgia diplomat who lost control of a car while driving drunk and killed a person resulted in such a waiver. The diplomat was charged with one count of involuntary manslaughter and four counts of aggravated assault, and ultimately convicted and sentenced to 7 years’ imprisonment.

In a case which occurred in Canada, senior Russian diplomat Andrei Knyazev lost control of his car, killing one person and seriously injuring another. He denied being intoxicated but refused a sobriety or breath test. In that case, Russia declined to waive immunity, instead prosecuting Knyazev when he returned home.

So while diplomatic immunity can enhance relations between countries, it should be used responsibly rather than as a licence to commit offences with impunity – which can result in animosity between sovereign states.